Cal/OSHA Appeals Board Revised Regulations

SAN FRANCISCO-- The California Division of Occupational Safety and Health Appeals Board (Cal/OSHA) has reformed its prehearing and hearing procedures for employers who request reconsideration of civil penalties from violations of workplace health and safety rules. The changes, which were effective July 1, 1997, also provide for the Appeals Board to assess some court costs for frivolous bad faith actions or tactics that cause unnecessary delays.

The Appeals Board, a three-member, quasi-judicial body appointed by the Governor and confirmed by the Senate, hears and makes decisions on appeals from citations, penalties, abatement dates, and other issues in dispute as a result of enforcement of occupational safety and health standards in California by Cal/OSHA. Employees may also appeal the reasonableness of the period of time fixed for abatement of citations.

Changes in the Board's rules were mandated by Senate Bill 523 of 1995. The following are highlights of the major changes adopted by the Board:

Subpoenas may be served by messenger. Service is proved by acknowledgment by the person served giving his or her date of birth, driver's license, DMV identification number, or other identifying information.

Subpoenas can now require attendance or production of documents at any reasonable time or place, instead of only at hearing or prehearing. Persons requesting subpoenas must comply with Code of Civil Procedure sections 1985 through 1985.4, which govern subpoenas of personal records and agreements to appear at a different date than stated on the subpoena.

Where a party has refused to provide documents or information pursuant to discovery requests, instead of going directly to superior court, as under the old Administrative Procedures Act, the party wishing to enforce discovery must file a motion with an Appeals Board's Administrative Law Judge (ALJ). The ALJ must hold a hearing within 15 days unless time is waived by the parties. The ALJ will issue an order within 15 days after the hearing.

Parties have the right to an interpreter at the prehearing conference as well as at the hearing.

A party can no longer object to hearsay evidence for the first time after a case leaves the Board and goes to court. An objection to the hearsay evidence must be made to an ALJ or the Appeals Board if it is to be argued to the court.

The Appeals Board may now order the payment of reasonable costs, including attorney's fees incurred in responding to another party's bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. The ALJs will hold hearings and issue written decisions where bad faith actions or tactics are alleged to have occurred.

The full text of the amended regulations may be obtained from the Cal/OSHA Appeals Board office at 1300 I Street, Suite 940, Sacramento, CA 95814, or by calling (916) 322-5080.

The Cal/OSHA Appeals Board's regulations will be available soon via the Internet at http://www.dir.ca.gov.